Loyola University Chicago School of Law, JD 2021
Climate change directly and indirectly impacts a range of human rights including the basic rights to life, food, water and housing. Along with all developed countries, the United States has an affirmative obligation to take measures to prevent and address climate change impacts thereby not only mitigating its dire effects, but ensuring that all displaced persons have, at a minimum, their basic needs met. These displaced persons are more often than not those who have contributed the least to climate change and are now disproportionately suffering from its harm.
The importance of recognizing climate change for refugees
The human consequences of climate change are staggering. According to a recent study, the planet could see a greater temperature increase in the next 50 years than it did in the last 6,000 years combined. Heat waves, storms, drought, and wildfires made more frequent and severe by climate change have and will continue to shape global migration patterns. The study explains that even just a warming of a half a degree Celsius is estimated to increase the number of people exposed to climate-related risks and poverty by up to several hundred million by 2050. As millions are displaced by shoreline erosion, coastal flooding, and severe drought, many will suffer, but many more will be forced to move. Such migration to the United States is already occurring from places including the Marshall Islands and Central America. Recognizing the long tradition of the United States as a leader in refugee resettlement prior to the Trump Administration, President Biden signed an Executive Order on Rebuilding and Enhancing Programs to Resettle Refugees and Planning for the Impact of Climate Change on Migration (“Order”) on February 4, 2021.
Prior to this Order, the United States did not have a formal way of resettling climate migrants, even if they had refugee-like status. Under current U.S. immigration law, people who are displaced by climate change, including natural disasters and environmental degradation have not been considered eligible for protection as refugees. That is because under the Immigration and Nationality Act, a refugee is defined as a person who is unable or unwilling to return home due to a well-founded fear of persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion. Yet, an average of 21.5 million people are pushed from their homes each year because of climate-related hazards. That is almost nine times as many people as those who apply for political asylum due to fear of persecution in their home country. While this Order does not expand the definition under the Act directly, it seems to create the necessary discussions to begin creating a proper system for those who are displaced.
The Order directs Biden’s administration to prepare and submit to the President a report on climate change and its impact on migration, including forced migration, internal displacement, and planned relocation. Further, the report must include, among other things, options for protection and resettlement of individuals displaced directly or indirectly from climate change, mechanisms for identifying such individuals (including through referrals) and opportunities to work collaboratively with other countries, organizations, and localities to respond appropriately.
Challenges to creating climate migration policies
There are currently no multifactor strategies nor legal frameworks to account for climate change as a driver of migration. Part of the reason for this lack of strategic direction is because there are only a few cases where climate change is the single component triggering migration. This is a global issue that needs local solutions. The data on climate migration is modest at best as figures often do not account for those who move due to the slow onset effects of climate change. Proper solutions will require multilevel organizational change to the complex challenges this issue brings.
The Order seems to be using the United States Refugee Act of 1980 (USRA) to expand the rights to climate refugees but, as a novel extension of existing law, the likelihood of debate in the current political context is high and will be laden with difficulty. The 1951 Refugee Convention also sets narrow criteria for protection such as requiring that an individual fear persecution. This effectively excludes those who would still truly suffer if forced to return to their home countries.
Finally, financial challenges will likely arise as the Biden administration has promised to expand the number of refugees the United States resettles to 125,000 annually. This will take massive funding from Congress and require meticulous security and health care precautions especially amidst the COVID-19 pandemic. These challenges, while difficult, will not be impossible to overcome given that this administration has shown through this Order that it aims to prioritize refugee programs.
Even with all the challenges it brings, the Executive Order is what we need to trigger the appropriate federal and state policies that protect this most basic human right – the right to life, liberty, and security. Eric Schwartz, president of Refugees International, showed sincere hope for these issues when he said the totality of Biden’s actions signals the “most comprehensive commitment to enlightened policies and practices” since the modern U.S. refugee system was created four decades ago.